Discrimination Relating to Maternity Leave

Pregnant employees and those on maternity leave have special protection which provides that any dismissals or detrimental treatment due to pregnancy or post birth-related illness amounts to direct pregnancy or maternity discrimination. This protection ends when maternity leave ceases. In addition to this protection, they may also be able to argue that the detriment or dismissal at any point amounts to sex discrimination.

Following the birth of her daughter, Miss Lyons intended to take six months maternity leave followed by 6 weeks annual leave before returning to work. Unfortunately, she was diagnosed with moderately severe post natal depression and was consequently signed off work by her GP. Following an extended period of long term sickness absence, Miss Lyons was dismissed on the grounds of capability as her employer considered she was unlikely to return within a reasonable time.

Miss Lyons brought Employment Tribunal (ET) claims for unfair dismissal, direct sex discrimination and/or pregnancy and maternity discrimination. Unsuccessful in her discrimination claims she appealed to the Employment Appeal Tribunal (EAT).

Whilst the EAT found that she had been treated unfavourably for a pregnancy-related illness, it confirmed that such unfavourable treatment only amounts to pregnancy discrimination if it occurs between the beginning of the pregnancy and the end of maternity leave ('the protected period'). The unfavourable treatment suffered by Miss Lyons took place after the end of her maternity leave and therefore was outside of the protected period and thus did not amount to discrimination. The ET's decision to reject her claim for pregnancy and maternity discrimination was therefore upheld.

Lyons’s claim for direct sex discrimination also failed. The EAT held that if a woman suffers a pregnancy-related illness after her maternity leave has ended, her employer is entitled to take into account the period of absence after the end of maternity leave and compare that period with any period of sickness in a man. In this case, the woman will need to be able to show that she was treated less favourably than an appropriate male comparator in order to succeed in a claim of sex discrimination. This case usefully demonstrates the principles involved in maternity-related sickness absence which occurs after the end of maternity leave.

Another, slightly unusual case concerning a police officer has also demonstrated what might amount to sex discrimination while a woman is on maternity leave. Ms Keohane, a police dog handler, had two police dogs. When she went on maternity leave for the second time one of her dogs was given to another handler apparently on a permanent basis. Ms Keohane brought tribunal claims of direct pregnancy discrimination and indirect sex discrimination.

At first instance the employment tribunal dismissed her complaint of indirect sex discrimination. However, the EAT overturned this decision as it considered, on her return to work, that the reallocation of the dog risked affecting her status as a dual dog handler and her career prospects. It also meant she lost the opportunity to earn overtime. The policy of removing dogs from their handlers without guaranteeing their return would have a differential impact on women and therefore could be indirectly discriminatory, unless it could be objectively justified (which has not yet been determined in this case).

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